Two quotes from Four Fictions: An Argument Against a Charter of Rights

By + Cardinal George Pell, Archbishop of Sydney, 29 April 2008 Address to the Brisbane Institute

The high standard of probity and commitment among judges and politicians in Australia is a blessing we should not take for granted. But as a forum for decisive public answers, parliament has a great advantage over the courts because it is much easier to bell the cat. Genuine public debate exposes the influence of extraneous factors which may or may not work against principled decision making. It allows all those concerned about an issue to have their say about the proper basis in principle for making a determination. This is an important safeguard.

So it is not only in areas of life, family, freedom of religion, discrimination and equality that a bill or charter of rights causes trouble. The irony is that the uses to which courts put a bill of rights often generate exactly the hostile majority reaction to rights that this sort of legislation is meant to avert. We don’t have a culture war here in Australia in the way the United States does, but a bill or charter of rights could help provoke one.

Well done to all for the flurry of sign-ins (70 in last 6 days). But we need much more so please keep the networking going with emailing/tweeting/facebooking contacts – even talking! Even though talk of a Bill of Rights has lapsed in the media and it is less and less likely that any bill would be introduced before the looming federal election, the risk is real. ProfessorJames Allan, Garrick professor of law at the University of Queensland writes in The Australian that the Brennan committee foreshadowed a back-up strategy if a bill were not to be introduced:

“The ploy here will be to insert one of the key provisions of a statutory bill of rights, known as a reading-down provision, into another statute, probably the Acts Interpretation Act. This transplanted provision will do the same work of authorising judges to interpret all other statutes in a new-age way as it would in a real bill of rights. It will allow them to read other statutes in a way they, the judges, happen to think is more rights-respecting.”

He also writes “When you buy a bill of rights, all you’re really getting is the views of unelected judges rather than of elected legislators.”

Bills of rights work in favour of minority groups who wish to push their values on the majority. They work in conjunction with and give teeth to anti-discrimination and anti-vilification laws. The liberty to bring up our children with our values is definitely under threat.

The People’s Charter, if successful, will be attacked on the grounds that it reflects majoritarian intolerance.

But does the view of the people matter? Is not the will of the people the core of democracy?

Will we reach the point with a Bill of Rights that unelected judges in this country will make decisions based on international right’s laws grounded in The Hague or Helsinki where an un-elected tribunal has made a 5-4 decision on a point of right’s law? (e.g. the age at which a compulsory value judgment must be made to assess an order for termination of life for the common good of society.)

OK, but surely we can also use a bill of rights to protect our liberties and fight decisions made against us?

Yes, certainly we should but remember that the – often protracted – case against you will be government funded while you will have to meet your own expenses and if you lose your case and go to appeal that can cost you hundreds of thousands of dollars and more if you lose as you may be paying the costs of the other side as well.

So what about human rights legislation being used on behalf of the ordinary person exercising common freedoms? Useless, as the legislation is there to protect the minority groups.

“The agency director said that stigmatizing or discriminating against majorities is ‘not real discrimination’ and dismissed the man’s objections with laugher saying, ‘Discrimination is something that by definition affects minorities.”